use the a lot of other material that was not just the tapes. there's a lot of other arian civile research that goes into this. i tried to balance them out a little bit, but the tapes, themselves, do offer things that you just can't get in other places. when a traditionally historians have to rely on, basically, in this period, two types of information. you get the written documents or you get the recollections in the form of oral history and things like that. the written documents are great for some things and not so good for others. what you end up happening is that they have to be written by someone. there's a filter right there. that person has considerations in their mind, and that is filtering it. the oral history and memories, we all know that memory's faulty. two people can be in the same room and remember things differently. the tapes, themselves, give us a remarkably unrehearsed, unscripted view of what was happening. what i tried to do is filter

those in with all of these other sources. >> host: david, thank you very much. i urge everyone to read the book and, later, you can look at the context in those transcripts of these tape recording as they come out over the next year. thank you very much. >> guest: thank you. ..

on affirmative action in the prelim to the supreme court hearing of oral argument in fisher be the university of texas. the authors report the agree with the national goals of affirmative action but now agree the system hurts more than helps minorities. this is about an hour and a half. [applause] >> thank you very much for that introduction, and thank you to roger and cato for hosting this event. i'm thankful to have such a good kick off to the book, which is actually being officially published today. as roger mentioned i am going to start and talk a little bit about the mismatch idea itself and some of what we have done in the book. stewart is going to try to relate this martin fisher and what will be happening tomorrow.

i am particularly glad to be doing this at cato because it stood for a lot of the values that i think are in the book, and i first became aware of cato and the 1990's when i was doing community organizing but in the beginning was thinking about policy issues and whether i should go back to graduate school and become a policy type of person. a big issue circulating at that time was the social security reform, and i started trying to analyze what was happening and i came up with this idea that social security is them structured and providing enormous subsidies. people receiving more benefits than they paid an and the interesting thing is the subsidies were for the class. so, i thought this was a read and should be part of the policy debate and start looking around

and nobody seemed to be talking about this but then i found a little book published by cato, which had figured it all out, and was trying not with very much success to get those in the policy debate so kato is a willingness to look at the fact to figure out what is actually going on here. you have to be sort of interested in how politics is actually going to work, the first thing you want to do is actually figure out the dynamics another analogy to the war on affirmative action is that at the time back in the early 80's imagine how easy it would have been to fix the social security problems and put it on a sound basis. 30 years later it is a much harder problem to deal with. and affirmative action is in our guess because today we have perhaps the greatest degree of racial peace and many senses the greatest feeling of the racial

justice in the united states to have. this is a good time to deal with this issue that has been lingering for a while. we may not. we may make it harder to deal with later on but i hope that we will make progress this year. as roger mentioned, i first got interested in the question when i was innocently working on the administrative issues for the law school that i taught, and i was very interested in the idea of academic sports, missions work, and it didn't take long to sort of look at what was happening to sense that something like a mismatch might be important. we were admitting students at ucla with large preferences who have a 90% chance of congratulating the only 50% chance of passing the bar.

welcome. so that i cumulatively meant that only 45% of the students with large preferences that were admitting went on to go through law school and get their degrees. it wasn't hard to look at the schools and los angeles where the students with preferences would have gotten in without preference to see that those students seemed to have much better outcomes so i started looking into this and looked for the databases that could help test it, and by 2004, 2005, developed the paper that we first discussed this in the context and found that this was quite a large problem that nationally the great bulk of the minority students especially african-american students were not receiving very large preference is typically on a scale of a couple hundred s.a.t. points or ten to 15 that the traits were generally very poor for this group only about

one-third starting infil law school in early 2000 were graduating and passing the bar on their first attempt. this was affecting the lives of a very large majority of people who were supposedly being helped by preferences. what really struck me is when the article came out when the institutional response. the collective unwillingness of a great many legal academics to engage the salles and the instinctive reaction of the institutions to further restrict data that was already hard to get and obscure the policies that were not revealed. the fact that there was no law school in the country somebody that received a large preference could get accurate information about the prospects for if they went to the law school. so, i became interested in trying to look at this more broadly, and the foundation contacted me in 2007 and they were interested in trying to get

good empirically based on the ideological research done, and together we commissioned a number of preferences to shape the loose data at the various institutions and to find distance and the social scientists who want to work on these problems. over time and partly through that and other independent efforts, a lot of this research has been done, the past majority published an excellent journal. so, we now know that it was a problem, that although they are more likely than whites to want to measure in science and engineering when they go to college they're much less likely to get what they call stem degrees in the science and engineering and math degrees if they receive a large preference. a study by friends of mine at the university of virginia found that if you take to students of any color one of whom received a large preferences and one of whom doesn't, the student with a preference has about 40% larger

chance of dropping out of science on his path through. the mismatch also affects if with academically inclined students that receive large preferences who with like to become university professors or going to academics sunday, but very predominantly receive low academic grades, clustered at the bottom of the class and decide that academics is not for them. the biggest mismatch experience was in california where the voters passed proposition and we had a large cause i national experiment about what happens when racial preferences are banned from the entire system. the results are extremely clear 21 the bothers. within a half-dozen on the neutrality the number of blacks in the university of the system had gone up by 30% the number of blacks receive them in bachelor's degree have gone up by about 70% and even larger for

hispanics they'd gone up in science did in a dramatic improvement. the only thing the critics can point to as a problem was that there were few african-americans at berkeley and ucla. the most elite which used the preferences when the racial preferences were permitted. but this was not actually a bad outcome. the students that had been admitted to berkeley and ucla were going to the schools and they had much higher success rates and because berkeley and ucla had reported so many minority students having a national reputation to do so, the race neutrality after actually increased the level of integration across the campuses. one of the things we talk about in the book is the cascade effect. when the elite universities and next students have a four page

graphic in the book to illustrate this, the most elite schools have the first pick as the students there would like to admit in the preferences, so those schools admit not only the very top african-american and hispanic candidates they also add that students in the second, food and fourth tiers of economic achievement. this means that when the second-tier schools want to use preferences they have to start fairly far down the ladder. and ironically that means that the largest preferences are not used by the most elite schools they are used by schools that in the third or fourth tier of all colleges. this is very important for a couple of reasons. one is that it helps explain sort of the strong knee-jerk defense of preferences that often led by the leaders of the most elite universities. because they look at their universities, and in fact the preferences are significantly more moderate than those

contacts. the worst affected mismatch are at the second, third and low were tears. the second effect of the cascade is that it means that even though only 20, 25% of all colleges in america are highly selective institutions they absorb so much of the talented pool of minority students that even schools say second-tier state universities that simply have threshold requirements to get that are still going to have a large disparity of the students of the qualifications which is significantly aggravated by the use of preferences in the schools and that means the mismatch is something that affects a swath of the education. >> how much time do i have left? >> one of the things we talk about is another side of the racial preferences and the prominent in the discussions which is the diversity interest the schools and having a diverse

racial climate. how much the diversity affects are moderated by the academic distance and the schools in other words when you add that students with large preferences they are much less likely to socially interact with your of the other races. this has been very well documented by the research. there's also self doubt affect into the stereotypes one study even taunt the students who believe they were admitted on a preference are more vulnerable. so the diversity of research when we look at it carefully it fits very nicely, it's very closely into the mismatched finance. so with all of this about half of the book talking devotees affect then we go into the problems of institutional behavior, and that is a large part of the problem.

it's one thing to demonstrate these effects as they exist and the evidence does but it is another to try to get any institution of higher education to deal with that. when we look at the line of the amicus briefs and fisher to see how incredibly uniform is the solidarity of the higher education the to the existing preferences regime it is a nonstarter. it's very difficult to try to get these issues raised, and institutions that want to follow a different path are george nation will school which we have a chapter in the book about and find themselves of the mercy of the credit they want very rich and racial preference standards across all of the college's. the supreme court even has been somewhat composite on this in the past. the issued standards for implementing preferences, but justice o'connor applied them in such a loose way that it's been very well documented as well as by some of the research that we

have done that the school's use of larger preferences, or mechanically even after in 2003. stuart will go more into those issues. so we try to write a book that would be interesting to experts come important for the new engaging but also accessible to a much broader in a shot. we try to write a book that was this passionate about policy but passionate about the scale. we have to judge what you judge whether be succeeded. thank you. [applause] >> thank you, professor sander. we are now going to hear from professor sander's co-author, stuart taylor come author of the book out today, "mismatch" and by the way those in the audience can purchase it just outside. otherwise just go to your local bookstore or to any of the

on-line services to get a copy that's published by basic books. stuart taylor is an author and freelance journalist focusing on the legal and policy issues. he also writes for national journal, a contributing editor where he is a contributing editor. he's a stanford law school lecturer, and occasionally a practicing lawyer, his biography says. he's also a non-resident fellow what brookings institution and his current focus is on constitutional law, media law and the supreme court. he has been a senior writer for american lawyer media. he's been a distinguished lecture in writing at princeton university reporter and supreme court correspondent for "the new york times" and an attorney with wilmer cutler. he's a graduate of princeton university and i believe it is a harvard law school?

yes. please welcome stuart taylor. [applause] >> thank you very much and please extend my heartfelt thanks to you and cato for giving us this opportunity to try to talk about our new book. as rick said i'm the focus more on the case in the supreme court and i will give the basics of that case and then i will talk a little bit about the relevance of our books evidence about mismatched etc. to the case. this case we didn't know about this case when we started the book and the case doesn't dwell on the issues the book focuses on but we think that the solutions to the issues the book focuses on are pretty similar to the solutions to the overall racial preference problem basically reducing the size of preference and making them more transparent. abigail fisher is a student who brought the suit.

she was not admitted to the university of texas. they take roughly 10% of their -- no, they take roughly 85 or 90% of the students through, you are automatically admitted to the university of texas at austin. she wasn't in the top 10% she was close but she was in a good school and had good grades and she thought she would have gotten in, but for racial preferences she knew people she thought were less qualified than she was that got in and the scores were lower than hers, etc.. so she sued them saying she should have been admitted and meanwhile she went to the state university and graduated but she lost in the lower courts in texas which obliged to apply

strictly supreme court precedent the courts in texas, and for all u.s. court of appeals for the fifth circuit both held that the and university of texas plan which was modeled on the university of michigan will school that had been of help in 2003 that had followed the university of michigan plan closely enough so the court was obliged to uphold it. even won justice who said he hated racial preferences and would love to strike them down said that he had no choice but to pull this one as a matter of supreme court precedent. wide awake on seven of the of the 16 justices disagreed and thought that you could strike it down under the precedent. so the case finds its way to the supreme court, and it's likely i think to perhaps become the most important case in the history of racial preferences not so much

because there's anything that extraordinary about this case that because the composition of the court has changed since the 2003 case which gave a fairly green light to racial preferences, very large racial preferences as long as they are camouflaged but not to be in need a kind of complicated holistic thing. holistic that word is likely sprinkled holy water over our preference is by making them holistically here's where it works at the university of texas to have an academic index for people playing outside of the top 10% and the of a personal achievement index and the personal achievement index has many components and one of them as race. it's a personal achievement texas to be born black or hispanic and it's not such a good achievement to be born hispanic, i'm sorry, asia or white literally. that's what they call it, a personal achievement index. they also emphasize we of many that we consider.

race is only one little thing and we often don't take into account it's only a little finger on a scale. that's the pitch the university of texas makes. the numbers tell the different story. the best way to tell whether there is a racial preference in operational or whatever they call it is to compare the entering academic credentials of different racial groups after they arrive on campus. when you do that comparison the most recent numbers we have seen in 2009 looking at the university of texas freshmen who were accepted outside of the top 10% system, the gap was 467 s.a.t. points between the main agents or on the s.a.t. and the main black score on the s.a.t.. they were only 390 points between the main light score and the mean blacks score on the s.a.t.. that is on a 2400 scale. those are an enormous racial gap. so the idea that this is a tie

breaker or a little finger on a scale does not withstand the analysis and this is pretty true almost all the universities of the country, all big selective universities in the country. here as elsewhere the racial gaps are very large. now, from the mismatched standpoint, that means that the students who are at the lower end of the gaps are very likely to trouble academically and have the same kind of problems that are described. those problems one of the focus of this litigation. abby fisher's complaint is that she was discriminated against for being white. she wasn't talking about how the black students fair and that is the traditional approach. the university of texas again claims we are giving it the way the university of michigan law school did it and so we are okay. there are a number of distinctions against the cases though that meeting will help the now more skeptical court to strike down the preferences.

they wouldn't have to overrule the case to do so because the case as justice o'connor particular needed some principles that were supposed to limit the size and duration of the preference is to avoid abuses but she didn't really enforce them but they to remain on the books. you are supposed to pursue the alternatives before you resort to race. texas did. the heavy 10% plan the got a lot of racial diversity, and other diversity from the 10% plan. did dave really need to use the individual racial preferences on top of it? that is one argument in her favor. another is the court has said no racial balancing meaning you cannot try to mirror in the state's university composition of racial proportions of the statewide population. that is unconstitutional. the court has said in texas although they haven't gotten very close to the racial

proportionality that is an explicit goal of their plan. we want to come closer to the racial proportionality with people statewide. another principle is that this isn't supposed to go on forever. in fact we think it should and within 25 years. the nine of the 25 years are gone, some universities are supposed to be for preparing to phase out racial preferences in the next 16 years. no university anywhere that we know of intends to do anything except perpetuate racial preferences as far as the eye can see for decades may be 158100 years and one way the university of texas manifest intention is that they say that they want a critical mass of every racial group and every class and they are trying to get there through a system of preferences that systematically channels people with different racial groups into different classis when blacks are dropping out of science because they can't compete with the whites in science and go another course that isn't producing critical

mass and so this will go on for a very long time. so since his research and other of research has demonstrated universities and particular law schools in particular the university of michigan undergraduate school their plan was struck down by the supreme court in 2003 because they have an explicit racial point system if you're black or hispanic or asian you get 20 points, if you had an average instead of a b average in high school, you get 20 points. 14 grade point. that was a little bit too explicit for justice o'connor. she struck that down, but under the supposal holistic system that the substituted for it, they have used larger racial preferences at the university of michigan than they had before they were struck down. this doesn't seem to us to be consistent with the spirit of the supreme court decision and

the same has happened at a lot of other places. the evidence suggests large racial preferences in the gap of 200 to 400 s.a.t. points the gaps in the gpa patronis scores of black and white students and most selective schools. another principle stated was it's unconstitutional to use racial preferences to the extent that the unduly harming members of any racial group that is a quote, harming the members of any racial group. we are doing we think the evidence shows the preference as to use in texas unduly harm the members of every racial group and primero the first and foremost to are excluded and the lights are excluded like abby fisher because of their race who might otherwise have been invented we think they do worse harm to the black and hispanic students who are misled into

thinking they are well qualified and who get there and find out they are not going to have the outstanding academic record so they will be lucky to grow to read it so they are lucky to be at the bottom of the class. i am not talking about black and hispanic students per say, but students of any race, and this is usually black and hispanic preferences are admitted based on large preferences are not likely to do well this is concealed for one minute. what does this have to do with our research? the remedy we think the court should adopt to cure the problems isn't to ban racial preferences, roger i think will make a strong case for doing that. our remedy would be total transparency. full disclosure of how the system works, how large the racial gaps are and how people there who are admitted with

large racial groups. it's sort of a consumer protection measure so that the minority students will know what they are getting into, and it's all so you can't make intelligent public policy about matters that are kept secret as to how they work. the second would be no racial preferences can be larger than whatever socioeconomic preference the same school has. for example it is now routine for the children were doctors and lawyers or hispanic doctors and lawyers to be admitted ahead of better qualified children and white cab drivers, seamstresses, metal working class people, so this system operates contrary to economic egalitarianism and it's making economic inequality in america worse, not better and i better stop before roger gives me the hook. thanks. [applause] thank you, stuart and as you can see from the conclusion of the

book that he just stated these folks over here would never be confused as card-carrying conservatives or libertarians. in fact, anything but that for rick sanders based on the introduction that i read. stuart on the header hand would pass as a card-carrying moderate. i never found any issue which he couldn't say on the one hand and then on the other hand. [laughter] in any event, we are now going to hear from the critics from either side on both the book and the case first from roger and then from alan morrison. roger is president and general counsel of the center for equal opportunity. he focuses on legal issues arising from civil rights laws including the regulatory impact on business and the problems in

higher education created by affirmative action. a former deputy assistant attorney general and of ronald reagan and bush of administrations, he held the second highest positions in both the civil rights division and the environment and natural resources division. he has held several other positions in the justice department including the assistant to the solicitor general, associate deputy attorney general, and acting assistant attorney general in the office of legal policy degette ki is a graduate of yale law school. please welcome roger. [applause] >> thank you very much for that nice introduction and for inviting me today. thank you to the cato institute and rick and stuart writing this wonderful book. i am going to begin by keeping

praise on rick and stuart for this book to be it's terrific. it makes an extraordinary contribution to the debate on these issues. i think it's unprecedented my contribution in many ways. i've read the book, and it's very readable and it's got lots of charts and diagrams for those of you that like that sort of thing. and it's very well written. everybody should buy multiple copies. [laughter] give them to friends and family. people you know, people you don't know. it's a terrific book. and i shall also see something about what terrific people the authors are. you know, you've got to be smart to write a really good book, but this area you also have to be brave. particularly more so for them to write a book than for me i have

a few friends any way. [laughter] i don't whole round with reporters and academics and people like that very much. rick is an academic. stuart does how will around with reporters. people to get personal when you start attacking things like racial preferences. so, i am being a little bit humorous about this, but it is true. you put your career on the line when you say stuff that is set in the look and it's not only a great book, it's a jury bright book.

for the abolition of racial preferences and the university it should have and someday they will, and i going to in the balance of my time explain why the supreme court should do this in the case. i am going to begin by reading the text of all in this area which is independent tomorrow because a will be embarrassing to the supreme court. but let me read to you title six of the 1964 civil rights act, not all of it, just part here. there's only one so we are not picking and choosing. no person in the united states shall on the grounds of race, color or national origin be

subjected to discrimination under any program or activity receiving federal financial assistance. that is what happened to abigail fisher. it's not disputed. she was treated differently because of her race, color and national origin. now, we are not going to be talking so much about title vi, we are going to be talking about the constitution because the supreme court said well, that doesn't really mean what it says. we think it just means what the constitution means. and of the constitution is it has a little more wiggle room although not a lot. the constitution guarantees equal protection of guilaume and out what the purpose. the separate legal standards. that seems straightforward.

the court has made clear that includes college tuition. the court said the words don't matter what they say. soon and there is an exception in this area of. to the principal of racial discrimination it's pretty clearly there and all and the branches have spoken to this. it must be pretty strong and undeniable. it must be something like it helps us identify somebody that's about to settle the nuclear bomb in new york city to be really compelling.

the argument here is if you use racial discrimination in the kawlija emissions -- college emissions it is likely there will be somewhat more of the and rehearsed interracial conversations among the students and that the african-american kids and the latino kids who get these preferences are going to say something to the white kids and the asian kids that is it just has overwhelming compelling educational benefits. that's it.

that is the university of texas is are doing. that is the exception to the principal of nondiscrimination that the supreme court has recognized to. i think that is ridiculous. and indeed there are social scientists of their. increasingly these educational benefits, which, you know me get only a marginal and provide to education are disputed it's important for the court to bear in mind, and the court jurisprudence is moving this way

that even if there are some educational benefits the costs that are inherent in engaging in this discrimination something is compelling and if an interest is compelling and, you got to consider the inherent liabilities and the racial discrimination that involves to crime. what are some of the costs of racial discrimination and the university missions? why should notice by heart but i don't and this is my little litany that i post on the comment sections on the web site of the time the costs of racial discrimination in the missions is personally unfair and since a disturbing illegal political and moral precedent in allowing racial discrimination it

stigmatizes the so-called beneficiaries and their eyes of their classmates, teachers and themselves as well as future of lawyers, clients and patience to read the mind set removes the incentive for academic excellence and encourages separatism. it compromises the academic mission at the university and no worse the overall academic quality of the student body. it creates pressure to discriminate in graduation and it encourages the attitude among the college officials and over the social problems in so many african-americans and latinos are academically on competitive. and it gets the states and schools involved and unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not and how much blood is needed

to establish the membership and i didn't mention the mismatch giving the chapter and verse and ample irrefutable documentation for why this is a real problem and it also touches on some of these other problems that i have listed, too. you have added all of those up and it's a lot stronger than the educational benefits they might be having more of if the use racial preferences and emissions let me wrap up with one sort of happy note to end on and then one not so happy note.

peery this seems to me and i think it ought to see to the justices. he. it was a black-and-white country and if you had a lot of people who had only recently been discriminated against and had recently been living under the schenker system and now we're talking about the people that give preferences now are born in 1994. it doesn't seem like very long ago somebody my age. in 1994. that's 30 years after 1964 civil rights act. according to the latest census one in four americans now describe themselves as being something other than want. african-americans are not the largest minority group anymore.

they haven't been for a while. latinos are larger group than african-americans are and either one of them is the fastest growing racial minority group, the fastest growing is asian americans. african-americans are growing at only 12.3% rate. white americans are growing at 5.7%. another rapidly growing group are people like our president who could check more than one box in the race and ethnicity section of the questionnaire. it seems to me that in a country like that, we cannot have a legal regime that supports people according to their skin color and what country their ancestors came from and treat some people better and other people worse based on which box

the check. now frequently people who are arguing in favor i make this issue all the time let me tell you. we're talking with the racial disparities and that's the only justification anybody really believe sen but the academics don't really believe that they are these compelling interests from these interracial conversations why we have these racial disparities is it because of slavery. the federal government once or twice a year cannot and in its latest figures of birthrates

were out of wedlock births. a 72.3% of african-americans now are born out of wedlock. 72.3%. 62.1%. if latinos its 51%. for whites still pretty high, but it's 29 print 1% and for asians and 17.2%. five out of ten for blacks, american indians and latinos, those are the so-called underrepresented minorities for racial preferences. and then fewer than two out of ten whites and asians who are typically discriminated against

and the university missions. thank you. [applause] >> now we are going to hear from allyson morrison, who is the lerner family associate dean for public interest and public service law at george washington university school small. the pro bono opportunities for winning a wide range of public interest programs to the law school to seek positions in the nonprofit and government sectors and assisting students to find ways to fund their legal the education to make it possible for them to pursue careers outside of traditional law firms

for most of his career he worked for the public citizen litigation groups and directed for over 25 years. his work involved long reform litigation and areas including open government, opening of the legal profession's agencies and the separation of powers protecting the rights of consumers and the class members and class action settlement. he's argued 20 cases in the supreme court including victories in virginia state board of pharmacy and virginia citizens consumer council making commercial speech subject to the first amendment and the two entered federal walls containing the legislative veto is previously taught at harvard, am i you, hawaii and american never

city law schools and a member of the academy and is a graduate of yale university and harvard law school served as a commission officer in the u.s. navy and was an assistant u.s. attorney in new york. please welcome alan morrison. [applause] >> i also have the distinction of two things. i read and comment on stuart's book. i don't get a medal of honor for that. my name is and the acknowledgement so no one has come after me yet and if you think it is incendiary. second, and also one of the few lawyers and practices in the supreme court who didn't file a brief and the fisher case. okay, so let's begin by remembering that fisher is a concrete lawsuit and not an academic debate about the values of affirmative action the

university of texas violate the equal protection clause in connection with its undergraduate emission program and did abigail fisher was she injured by what the university of texas did and i want to start by explaining the emissions program will and it's not supposed to do and what it does and doesn't do. as we have the top 10%. this guarantees anyone that graduates the top 10% of their high school class. if you want to be in business and that's filled out your guaranteed to get into something but not necessarily into business it has clear limits. first and only applies to the graduates of high schools in texas say you can't get anybody out of state that way. second, only applies if the school ranks individuals, and it

turns out that in texas and many other places for academic reasons, schools do not rank individuals because they think it is bad pat ecology pedagogic those schools can't get in the top-10 preference. third, it only deals with the brains. you wouldn't necessarily get any athletes or musicians or any other people besides those who score the highest on their essey t. the sats are interesting but they probably ought not be the only criteria or at least that's the university of texas thinks. it cannot work for the national universities. there's no way you get the top 10% or 2% or any person around the country. there were not enough students in the place like texas to get

it into the university of texas graduate program and law or anything else. many people think it was the reason why they did it. is in texas there is highly segregated high schools based on residential patterns and racial segregation not required, but economically largely or socially so they have a high schools and the hispanics have the high schools and largely white high schools, not completely but very largely done that way and that is the way they were able to get some significant racial diversity in the class if fifth if if. they don't have the diversity in the racial groups or insufficient numbers of racial groups, racial minorities in the

school and dillinger with the call of a holistic approach and that's not my title. there are two axises that stuart said. down the one axis is the academic achievement index, and that is a combination of your grade point average and your s.a.t. and there are boxes like the box here. and there are another index which is that consists of a single number when you get that score. the race isn't involved in that at all. vendors what is called the personal achievement index, there are six factors coming to a total of six points and race is not a specific factor although it is recognized to be included within one factor, a factor called special circumstances. those factors are combined in a single member. it's my understanding and you don't get a point for each of the factors, so that things like

leadership, athletic ability, music and other things like that all of which go into the circumstances you get a number, total number at the end, and then the numbers at the bottom go across this way and the numbers go up this way and at the intersection of the number here with of the number there you get a locks and everybody in that box gets admitted or gets denied based upon them were of people the need for admission to the undergraduate program so there is no reason the final determination, there is no quota, there is noble other than the general goal of increasing the number of hispanics and african-americans and some desire to the particular clause is and programs as well, the so-called critical mass they wanted to talk about. it turns out that between 60 to 80% depending upon the year are admitted in a top 10% and different numbers and the

holistic approach for those other years. in addition 90% of the students actually attended the university and one of the difficulties in the statistics is between those that get admitted and those that actually attend so you have to be a little careful with your numbers but 90% of the people that attend or from the state of texas which means it is very difficult to get people in from out of state if you use the 10%. there is no question the goal is to bring in more minorities and more diverse minority soft. they don't believe it does this, but it is impossible to determine exactly who is preferred and by how much because race is admittedly part of it, but only one part. but even if there are very large numbers on who gets admitted. the africans and hispanics it is really quite small and this is

one of the strange things about the case. the defendants say these are approximate numbers from 3% african-americans in the top 10% to four a quarter% with a holistic approach and they say if it is a preference is a slight preference. the plaintiffs as a theater and if it doesn't help very much and i can't be important. both are doing the same thing that it's not very significant in terms of the numbers one says that as proof it is not important and the other says it's not very much harm and it's kind of an irony to i don't know the court is going to do about ineffectually to resolve that is what the two sides are saying. rather than making it later, the case by the two parties is being

argued on a very narrow ground. that is both of them are accepting saying we comply with it or know you don't comply with it. on the plaintiff's side they are giving much more broadly for the end to the use of diversity at all it will be interesting to see what the court says about that. the plaintiff has a burden of showing the racial factor had an effect on the program in general and even though there are no goals or quotas or specifics about the plaintiff has a burden of showing a significant impact and more importantly capano i want to make a couple of additional points, there is no question that if miss fisher had gotten a six which is the highest score down here for academic achievement index would not have been high enough to put

her in a box that would have gotten her admitted and the argument the state makes is you are not harmed by this because you would not have gotten at it under our system. the difficulty is of course you can't tell how much help anyone else got as a result of the system because there is no scoring based upon race having specific goals or quotas assigned the numbers to it which creates another kind of irony. it's important that ms. fisher might have been admitted in a summer program in which texas admits a number of people who are not admitted in a regular program. it's not clear to me and maybe to anybody else when she tried to get into that program she was not admitted there so one of the arguments that is being made is it's impossible to reconstruct what would have happened and that maybe this is a lawsuit

that could prevent the university of texas from going to export in the future she would have completed the university, this wasn't a class-action and she has not sought an injunction against future use of the program because she would have no standing. the only thing she is seeking is monetary damages. the damage that she has claimed as far as i am aware is she paid an application fee of i think $100 or something in that range and she wants that back not at all clear. she's entitled under any circumstances this is the university of texas and there is a thing called the 11th amendment which i don't like very much but it's out there and it prevents people from getting money back from the states unless the state has clearly waived its right to engage in the activity model clear that they would meet that test here

as well. the emotional damage is not at all clear that she is entitled to them it is a case called washington versus davis which says when you are violating the constitution you are seeking damages you have to show intentional violations and will be hard to show that. it's not something somebody thought about the and as a means of getting out. these problems were presented to the supreme court. the tree or for conferences before deciding to take the case. only eight justices acted on the order because the solicitor general filed the amicus brief in support of the university of texas in the fifth circuit of appeals says she isn't sitting on this case so we have only four justices on the case and the potential for the tide is certainly there.

despite the fact that she is dubious remedies even if she could prove she were harmed in the the system is unconstitutional, the court nevertheless took the case. some of the briefs have pointed out that among other minorities, the asians are discriminated against and of course it is historically true that the chinese and the japanese were discriminated against for long periods of time in its history. if you're interested in the data you might as well have them. in texas there are about 3% of the population is asian american. there are problems with all of these numbers, and that is to use the overall percentage of the population, do you use high school graduates or do you use high school graduates who arbor able to go to some college at all, or maybe elite colleges like the university of texas but leaving those aside for the second.

they constitute 60% of the entering class and those that apply to the university of texas get admitted obviously at a higher percentage than everybody else so let me make a couple of points and in some ways. they have accepted. the diversity is a sufficient rationale for the university's to attempt to include more minorities in their class. i think that universities should be able to decide how they want to structure their class and that academic achievement alone does not and should not be the only criteria they can take into account. ..

>> if you accept diversity as a rationale, what is it texas can do besides the top 10% which the university says it not adequate for the reasons i gave earlier. if they want to increase the number of african-americans and hispanics without going to a quo that system. well, the easy answer is just disregard race entirely, but think about that for a second. you are now an admissions

officer, and you have a personal essay in front of you by the student. the student says i was a member of the black students association, i grew up in the ghetto, subjected myself to this thing, arrest byes police because i was black, and i decided that what i really needed to do was get an education and become a lawyer. can anybody expect any reader to strike the fact about being african-american from that essay? are we going to have somebody go through and ed it every essay to be sure there's no indication of the race of that individual and do some kind of mind experiment on the readers to see that they don't even think about race? that's the problem the university of texas has. last thing, despite the fact it's a narrow case in many respects, the supreme court is able to disregard the wishes of

the litigants and go as broadly as they want, and i give you citizens united for example. thank you very much. [applause] >> i wondered if there was a way we'd get citizens united in the discussion. [laughter] >> a day without citizens united, dot, dot, dot. >> yes. a quick few comments before we open it up to the floor. >> mine's quick, i have to leave in 8 minutes. >> oh, okay. >> i, you know, three quick points. the reason why we need transparency is because we need to have better facts. i mean, if you listen to allen and you listen to roger, it sounds like they are talking about different universes; right? to some extent they are because so much of the dialogue about affirmative action in america is just based on selected facted

disclosed by selected parts of the system, and the proportion of the relevant information out there is maybe one per hundredth. transparency is a good way to move the system forward, whatever you believe about preferences, i think. secondly, when you look at the actual operation of preferences, the holistic idea really is complete funk. we're not looking at an individual essay saying this person's life shaped their life experiences in a profound way. we're looking at systems where you rank students by economic criteria, and there's a whole codray of a specific race, and then they are not eligible unless they are a certain race. that's what justice o'connor was trying to unsuccessfully put forward, and what a lot of people are simp thet call.

-- sympathetic to. another problem with the analogy is you are not looking at people who grew up in ghettos or people arrested by the police. the vast majority of african-americans receiving preferences is to selected institutions from upper middle class or wealthy backgrounds. that's simply a fact, and so the preference systems are not getting the diversity that we want. they are getting a diversity that feels good, that seems to give an ora of legitimacy to the university, but not one that actually changes educational experiences. >> i agree with a great deal of what allen said. if there's a disagreement, it's over his apparent view it's improper for the court to sort of reach out in this case in which this standing is kind of shaky, and there's a lot of reasons to think they don't need to decide anything big in the case, but just decide it without

disturbing anything anywhere else, and they could. that's true. awhile ago, i might have said, yeah, she shouldn't, but that's what the supreme court does. they reached out in citizens united to decide issues that they didn't have to decide. they reached out in row versus wade. they reached out in lawrence versus texas, the gay rights case, reached out in the juvenile death penalty case. those who don't want tome this reach out in this case, do want them to reach out when it helps their cause, and maybe they reached out in the case, allen's case. my point there is the court shunt -- shouldn't make it up, but they are a policymaking body. it's evolved that way. that's what they do. they take cases, and they decide broader principles under those cases, and here we have a very serious problem that i think justifies a little stretches,

not in my opinion to ban racial performances, but to impose remedies we suggest transparency and socioeconomic component because as our book details, every other institution in america's society failed to come to grips with this problem. the university systematically mislead applicants and the rest of country how it works. the politicians are terrified of it. no major politician attacked affirmative action publicly in 20 years, not 20, maybe 16 years. this is not going to change. we're going to have racial preferences for the next hundred years or more unless the supreme court does something to slow it down. >> a non-political branch, a policymaking body. say it ain't so. [laughter] brief comments, roger and allen? >> well, i'm going to limit my comments to what allen said because he spoke after me, and i spoke after rick and stuart.

you know, on the distinguishability issues, i think that whether abby gail fisher would have gotten in, i think that the huge gaps in sat scores that stuart and rick talked about are relevant, and i think it's significant that the parties have basically, you know, texas has now in the merits, at the merit stage, relegated standing argument to, you know, a footnote, and so i think the court is going to decide the case. on everything else that allen said, you know, most of that i do not agree with, and i think it's instructive, you know, to put the shoe on the other foot for a lot of these arguments. for instance, you know, he says, well, you know, asians make up only, what, 3% or something, and of the general population in

texas, and, you know, their percentage in the student body is above that. you could have said the same thing about jews in the ivy league 50-75 years ago. that doesn't mean that jews were not discriminated against. that was no justification for the anti-jewish quotas that the ivy league had. he says, you know, there's all things weighed in addition to academic achievement. nobody up here is saying that academic achievement is the only thing to be looked at. i'm happy for texas to give scholarships, you know, for quarterbacks and tuba players and rich alumni -- well, not rich alumni so much, but anyway, the question, though, is whether they ought to be discriminating against people on the basis of race, okay? that's different. that's different as a legal manner, different has a historical manner and we ought

to defer to schools in general when it comes to structuring classes, but not with racial discrimination. i'm sure allen would not have been okay to deferring to ole miss 50-60 years ago when it was weighing race and deciding who to get admitted, rein i don't think -- and i don't think we should defer to the university of texas now when it comes to weighing race and who gets admitted. >> allen? >> so, let me talk about the one thing i didn't talk about which is it's perplexing to me. there are -- i don't know how many studies, but scores and scores of studies, many of them, if you read the reports of them in the briefs, completely contradict each other. one study says this, the other says that, but this study proves that, and the other says this study proves this. none of these were the subject of the trial type proceedings in

the district court, and my question is i don't know what the answer is. what is the supreme court supposed to do with all of this, and, indeed, what are they supposed to do with rick's fine book with a lot of studies which if you read other briefs they say, no, those studies are wrong, invalid, and so forth. how is the supreme court supposed to deal with that problem? should the supreme court be deciding based on a bunch of studies no matter who did them on which side in which they appear to be contradictory without having a trial-type proceeding or at least having a legislative proceedings in which the legislature could sit down and say we've thought about this and considered this. perhaps even if the university of texas was presented with these studies and sat down and made a conscious decision. i do agree with stuart that transparency is a very important aspect to it. to the extent that some of these programs, and i'm not

identifying anyone in particular, have the facts known that it's only been known as a result of the discovery in litigation. it's always seemed to me that if you can't tell people about a wonderful program that you're doing because you kept it secret of all the details and maybe the program is not as wonderful as you think it is. now, having said that, it's unclear how the supreme court would order transparency as remedy for ms. fisher asking for money for not getting admitted to court, but i leave that conundrum to the rest. >> let's have questions from the audience. please wait until the microphone gets to you, identify yourself and any affiliation you may have. this woman on the end. >> thank you. peggy, congressional correspondent for the hispanic outlook on higher education. i've covered hispanics for years, and what i love about covering them is they are so diverse, and even the census

recognize they are not a race. why are hispanics involved in this? as we see in the colleges more and more kids now checking off multirace or can't be distinguished as race, why is race even a factor anymore? >> directed to any particular person here >> -- >> why are hispanics considered a race. >> i'll take a stab it it. affirmative action first started being used, quickly extended to hispanics, and i think the logic at the time was although hispanics didn't have a legacy of slavery, like blacks, on the lower end of the population socioeconomically. they were people that needed a leg up. they needed a break. that was the idea. it's -- >> [inaudible] >> good question. >> why not just have a performance -- >> yeah, i'm trying to give a

diagnosis a posed to prescription. now it's political. hispanics are a powerful voting block and growing especially in california, especially in texas, and that's a reason where what we have that began evolved into a racial spoil system where the people who benefit are often more affluent than, well, than the people who don't. i stop myself on benefit. of course, our point is sometimes they are being harmed. >> gentleman right here has a question. >> i kind of want to ask a question -- >> identify yourself. >> steven hank, and i have no affiliation, i'm just retired. come to cato events all the time. i have a question considered outside the box. everything you're all saying sort of assumes that there

should be cry criteria of some e administered by the university whether it's academic achievement, and i'd like to throw out to you why the idea that every other service provided in society is divvied up by price, and therefore when the people who most need it, who most need it determine they are willing to pay the price for the best education, and, in fact, a lot of times you have really brilliant people who have no need to go to university, and they are going to get very little out of things, and it may be the weakest student that may get the best, the most out of the education. my question to you is why is this ab sent any discussion what i just said of affirmative action or of education? it's pretty clear that the

customers in the situation are really not customers. they are beneficiaries more than they are customers. >> okay. probably that should be directed to alan, the only remaining academic up here. do you get your money's worth out of higher education, alan? >> when it comes to my classes, they definitely do. >> okay. [laughter] >> i guess, the united states today, to move ahead, you have to have a college degree. many people who would be able to enter college and succeed? they don't have the money to pay for it. i, for one, would not like to see university systems that was treated like the marketplace. >> [inaudible] >> very quick. >> [inaudible] you could have a government program that gives money to people who are poor so they could go to college, but it doesn't have to have anything to

do with being the -- changing the criteria or some price. >> i guess i don't understand the system. we'll have to take it up another time. >> there's a lady there with her hand up. >> yes. >> hi, i'm kim humphrey, a recent graduate -- >> hold the microphone close. >> a policy assistant at aclu, and i just want to first address a few policies, i guess, just the assumption that anyone who's in the middle class may not have been arrested or may not have had any issues related to race. i just think that's playing an important part in the conversation. also, the point about stem graduates. i think they are down generally

across the board. regardless of race. and then -- so then i guess my point is why aren't preferences of any kind, like, i would think they would need to be as transparent, so it's -- it's -- i guess it's the question, like, the others are saying. why is race the only issue in preferences that is the biggest? >> well, i would certainly support transparency in athletic scholarships, legacies, and anything else that somebody could identify as a significant factor that at least is ought to be a subject to debate. that is, one could be for or against athletic scholarships, but we at least ought to know how the people are doing, how long are they staying in school, what degree of performance are we giving, and i think that the state university should be required to divulge all things as well as things about legacies as well. >> doesn't that just raise the issue, alan, that athletic

scholarships are based on ability, presumably academic admission is based on ability, but when you throw in race or other irrelevant criteria to ability, then you raise the question. >> well, the university defends it on the ground of their ability to bring different viewpoints to the university. you may not accept that, but moreover, i think the question in all of these things is not whether you can take a factor into account if it's a subject of public debate, take the legacy question. the question is not whether there should be any benefit, but how much it is, and if you don't know the extent of the preferences, the public can't have a intelligent debate about it. >> i don't believe there's a problem with transparency, and i agree with alan on that, but i do think we have to keep in mind that race is special. you know, treating people differently because of race is something that is uniquely ugly. it's there in the law you're not supposed to do it. i think we had a civil war that had something to do with that.

there are all kinds of reasons why it's different, and, you know, one point i wanted to make when alan talked before about social scientists say this and social scientists say that. he's exactly right. i think that -- it is ridiculous that the supreme court has carvedded an exception out of the equal protection clause that depends on social science evidence. i think that the social science evidence is indeterminant, which it is, then we shouldn't be discriminating against people on the basis of race. >> roger, could i -- >> quick point on stem grads. our point is not that we need more of them, maybe we do, but our point is that when students, black or hispanic students go to college wanting to be stem majors, they should not be misled to go to colleges where they have very little chance of becoming stem majors. >> the gentleman up here in the blue shirt.

>> greg skuires from george washington university and previous board member of the woodstock institute where mr. sanders was for awhile. you gave us a percentage of the number of people born outside of wedlock. what do you think accounts for those patterns? >> well, that's a very interesting question. i'll tell you one thing that i think doesn't account for it. i don't think that you can say that, well, this is because of, you know, these are the wages of discrimination and slavery because these numbers have been getting worse over time. you know, rather than better. you'd think if this is a result from discrimination and slavery, it would have been worse in the jim crow era and worse in slavery. there are complicated social causes for this. i think that, you know, the great society, i think that the way that the welfare system worked for years, it's cultural, and i think it's also, you know,

fundamentally, you know, has a lot to do with morality and religion and the fact that the -- the forces -- it's become more and more acceptable in our society to have children out of wedlock, and in particular, in the african-american community, and it's too bad. >> and the -- if social science does show anything, it is the correlation between two-parent families and achievement. >> absolutely, and, you know, that was also politically incorrect to say for a long time. i mean, that's the reason, you know, when daniel patrick pointed this out in the 1960s, he got such a fire storm of criticism, he stopped. brave a man as he was, he had nothing to do with this issue the rest of his career, but now it's becoming increasingly recognized on both sides of the

aisle as roger says, you name a social pathology whether it's dropping out of school, getting into trouble with the law, you know, whatever, and there's a strong correlation between it and growing up in a home without a father. particularly, for boys. >> this gentleman right here. we're going to have to draw this to a close in a couple minutes. this is the next to the last question. i'm sorry. >> i'm john rosenberg, i've been writing a blog on discrimination for longer than i can now remember. i have a question mainly for stuart. he's heard this from me before so it won't be a surprise really. i thought the book itself was magisterial, really, just incomparable until it got to the end where it didn't call for an end to preferences based on race. one of the strongest reasons given in the book for not calling for banning race

preferences, seems to me, like, mr. heckler's veto. well, they'll never obey it or go along with it so we can't get rid of race preferences because they want to do it so too much. i grew up in the state where the governor stood in the schoolhouse door, and i'm not really a moved by that argument very much, but i want to ask you a narrower, but very specific question. the things that two of you proposed at the end of the book to come up with a middle way between abolishing preferences and keeping them, your middle way had three points -- transparency, which we talked about a lot, trying to cap preferences by limiting them to the number of -- limiting them to the same size of socioeconomic preferences, but the third one to me was the most interesting one which is you want to outlaw any financial aid based on race, and the argument there is, well, why?

could you give me an example of a legal argument, not a policy argument, i know the policy argument. what is the legal argument that you would make that financial aid based on race should be unconstitutional or illegal that wouldn't also apply to admissions preferences based on race. >> good questions, and i'll try to answer all of them fast. the first is if you don't like our chapter 18, read the other 17 chapters. [laughter] our facts are more important than our opinions. i mean that very seriously. if you think we wimped out in the end, fine, think it, whip me. i'm glad to have you as long as you buy the book and read the first 17 chapters. [laughter] now, why i'm also why is it a reason we shrink? ending with the tex top 10 plan are worst than old-fashioned preferences because they bring in more mismatched kids, and

mismatches, you know, is our hobby horse at this point. why ban race based scholarships without banning all racial preferences? in the supreme court, this has gotten to be a cost benefit analysis. you know, the cost of racial preferences, the benefits -- we talked about that. when it's race-based scholarships, the cross benefit analysis is easy and clear. you know, there is no benefit to race-based scholarships. it only encourages a bidding war for affluent black students whether they're going to go to harvard, yale, or penn. who overs -- offers more money to people who don't need it rather than people who do need it of whatever race. we thought that a slam dunk, and we also thought it necessary to avoid an end run around the second claim which is race-based preferences can't be any larger than socioeconomic preferences because the universities would say, hey, we can handle that. we'll just give race-based

scholarships to even things up. we'd like to plawg -- plug that avaition. >> one last question, and this gentleman right directly here in the middle of the second row. >> my name's gerald chandler of high-tech consultants. i want to go back to the question of children without getting married. both after the children is born, how many eventually get married and actually transform yourself into a married family with children, and how many have stable relationships that may go on 20-30 years without getting married, and, yet, still have children? >> anybody have any evidence on any of that? >> or how many in-tact family when the child is born end up getting divorcedded? >> well, i don't -- >> i think -- maybe roger's in

favor of mandatory marriage for people as a solution. it's an interesting statistics. i decry it. people are better with two-parent families, two of same sex or opposite sex, i don't know roger's view on that, but i don't think that has much to do with this issue here. >> i think it has everything to do with this reason here. the pressure on racial ethnic preferences is because of the fact when kids get to be 18 years old, there is a real gap in the number of african-american kids who are, you know, who are doing well in school, and i think that that is traceable directly to the implosion of the black family, and, yeah, there are some

couples that maybe get married the day after the kid is born, and there are some couples that maybe get divorced after the kid is born. i understand all of that. those are all possibilities, but, look, that doesn't explain numbers like the ones that i read. 72.3% of children to african-americans born out of wedlock. that is a national disaster. you're not going to joke that away. >> all right. the book is available outside "mismatch: how affirmative action hurts students it's intended to help and why universities won't admit it," and stuart will be glad to sign copies for you, rick sander had to go to another meeting. join us now for lunch up on the second floor, and let's thank our c-span audience for being with us, and our -- [applause] our speaker f